Category Archives: case law

A stance which could not be described as honourable

Posted on October 16, 2015 by suesspiciousminds

 

I don’t often write about Court decisions relating to British citizenship, but this one

 

Bondada and Secretary of State for the Home Department 2015

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2661.html

 

had some incendiary stuff in it.  We all got fairly used, in the last two years, to Judges giving Chris Grayling a polite kicking, but Chris Grayling was… well, you don’t need me to tell you.  This is a Judge giving Theresa May an impolite kicking. And Theresa May is a much more formidable opponent.

 

As will be seen, however, the stance taken on behalf of the Home Secretary on other occasions during the period from early December 2012 onwards, and throughout these proceedings, is a stance which cannot be described as honourable. From early December 2012 onwards, both before and after the letter of 29 August 2013, untenable objections were taken to Deelavathi’s claim. The stance taken in those objections refused to engage with compelling DNA evidence. The result was that this stance effectively made an accusation that Deelavathi’s mother has lied about the parentage of her children for more than 60 years. At a very late stage in the present proceedings the Home Secretary accepted the DNA evidence. Nevertheless the stance taken on behalf of the Home Secretary when rejecting Deelavathi’s claim has, without a shred of evidence to support it, continued to make the same effective accusation. The conduct of the UK government in this regard has been grotesque. I add that in making these observations I do not criticise Ms Parry and I do not criticise the legal team in the Government Legal Department. They have approached their task with all such professional courtesy as is consistent with seeking to defend an impossible position.

 

Even against the backdrop of Chris Grayling and all those judgments against him, I don’t think that I have ever seen a High Court Judge use such strong language about a sitting Government minister.  This Judge is Walker J, not someone I’ve previously encountered. I like him.

 

Ms Deelavathi Bondada is the daughter of Mr Chandraiah Bondada. He had British citizenship and had it at the time of her birth. He was married to her mother, and he was married at the time of her birth.

 

The Home Office, during the course of the litigation were alleging that that she was not his daughter and that she might have been an illegitimate product of an affair and thus couldn’t rely on her father’s British citzenship to establish her own.

When she produced DNA evidence that she and her siblings shared the same father, and that her mother is the mother of all five children  (it not being possible to take a DNA sample from her father, who was deceased), the Home Office instead of accepting the utterly obvious and inevitable, instead suggested that all five children had a father who wasn’t Mr Chandraiah Bondada, and that the children’s mother had had an affair with another man and fathered FIVE children with him, whilst being married to Mr Bondada and lying to him.

 

If you find it abhorrent that our Government made such an assertion without any evidence to support that, then you will probably agree with the Judge’s views

 

 

  1. The November 2011 Consular Department letter complained that the passport held by Chandraiah at the time of Deelavathi’s birth had not been submitted. It said in this regard:

    … therefore we are unable to ascertain whether your parents were together at the time of conception or not …

  2. In this way UK government officials raised the possibility that Deelavathi might not be Chandraiah’s daughter. The family did not have the passport held by Chandraiah at the time of Deelavathi’s birth. The only copy that it had was of the initial pages only. This meant that they could not produce the rather limited evidence which the November 2011 Consular Department letter had sought. Accordingly the family decided to do better than had been sought, and to put the matter beyond doubt by obtaining DNA evidence.
  3. In my view the family did not need to do this. The Consular Department already had the evidence that it needed, for it had had since April 2009 the original of Ganikamma’s 1978 passport. If those dealing with the matter had studied that passport at any time between April 2009 and November 2011 they would have seen that their own predecessors had in October 1978 accepted that Chandraiah was Deelavathi’s father. No reason has ever been suggested for thinking that the British consular officials in October 1978 might have failed to carry out all appropriate checks. Accordingly, even without DNA evidence, I would have held on the balance of probabilities that the conclusion reached in October 1978 remained valid today.
  4. If there had been any reason to doubt this, however, the DNA analyses provide an overwhelming answer to any such doubt. At a very late stage in the proceedings the Home Secretary has conceded that these analyses show that Deelavathi is the daughter of Ganikamma, that Ganikamma is also the mother of Kurma, Kandeswara, Tata and Punyavathi, and that these siblings and Deelavathi have the same father.
  5. In these circumstances it is both astonishing and grotesque that those acting on behalf of the Home Secretary have put in issue whether that same father was Chandraiah. The Home Secretary’s stance is astonishing because it necessarily asks the court to say that Ganikamma may have had a secret lover who was the biological father of Kurma, Kandeswara and Tata while she lived with Chandraiah in Burma in the 1950s, and after the birth of Tata in India had the same secret lover who was the father of her remaining two children, Punyavathi and Deelavathi. This unsupported speculation is so far-fetched as to be absurd. It is not a real possibility, let alone a possibility of such substance as to enable the court to make a finding that Deelavathi has not shown on the balance of probability that Chandraiah was her father.
  6. However it is not merely an astonishing stance. The Home Secretary’s stance in this regard is grotesque. The finding that the Home Secretary urges upon the court would amount to a repulsive distortion of evidence that had repeatedly been put before those acting for the Home Secretary, had rightly been accepted on behalf of the Home Secretary by the Liverpool Nationality Enquiries Team, and had with unfailing courtesy and meticulous care been explained repeatedly to others acting on behalf of the Home Secretary. With not a shred of evidence capable of justifying such a stance, those acting on behalf of the Home Secretary have chosen to impugn the fidelity of a blameless 86 year old woman and to impugn the parentage of her five remaining children. Those acting on behalf of the Home Secretary have stopped short of explicitly advancing a positive assertion that the admittedly common father of all five children was someone other than Chandraiah. But they have instead adopted a stance which, with no justification at all, puts the siblings’ parentage in issue, and thereby unwarrantably impugns the whole basis upon which Ganikamma and the children have conducted their lives as a family.
  7. I accordingly conclude that the Home Secretary’s stance on this issue is unjustified and totally without merit. In this regard I do not rely upon the presumption of legitimacy. Deelavathi’s parentage has been proved by overwhelming evidence and without the need to rely upon any presumption.

 

Having said at the outset that I’d never seen a Judge use such strong language about a sitting Minister, at this point in the reading, I felt that he had gone a bit easy on her.

 

You will not be staggered to learn that the Judge ruled that this woman should have her British citizenship. As a fellow British citizen, and I can speak only for myself,  I’d like to say “welcome to Britain, Ms Bondada. We aren’t all like Theresa May”

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Unlawful removal of a child, compensation paid

Posted on October 12, 2015 by suesspiciousminds

 

Her Honour Rowe QC considered this case, where a Local Authority removed a child and placed the child in foster care when at the time, the mother knew nothing about it.  It is a decision by a Circuit Judge and thus not any new binding law, but it is interesting and potentially important nonetheless.

 

Re AS (unlawful removal of a child) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B150.html

In this case, both the mother and father had mental health problems. On the 9th October 2014, the mother suffered a significant episode of mental ill-health. She arranged for a neighbour to look after her son who was aged 9, and to take him to school. She called an ambulance to take her to hospital.

She was admitted to hospital and was detained under section 2 of the Mental Health Act.  She was not told until 16th October by letter (!) that Brent had removed her son from the care of the neighbour, whom they considered unsuitable on 9th October, using section 20 of the Children Act 1989.

Brent issued care proceedings on 11th November, and an ICO was made on 13th November 2014.  The child was thus in foster care on “section 20” from 9th October to 13th November, although mother had not consented, had not been asked to consent, and for at least some part of that time would not have had the capacity to consent.

It was not really in dispute that if Brent had sought an EPO or ICO at that time that the Court would have made one, the dispute was whether they had the legal authority to keep the child in foster care without an informed and capacitous consent from mother.

 

The argument from Brent hinged around the wording of section 20 (1) (c)

 

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

And on a technical basis, they might be said to be right. The Act itself never mentions a parent consenting to section 20.  The latter passages of section 20 make it plain that the LA cannot provide a child with section 20 accommodation if a parent with Parental Responsibility OBJECTS.  In practice therefore, most Local Authorities would seek the parents consent and for the parent to sign a consent form.  Brent’s argument here was that they didn’t need a consent, they just needed the absence of an objection. There was no objection, therefore the child was validly accommodated under s20(1)(c)

 And on the bare words of the statute, they are right.  However,  it would be a really technical defence to run, and it is not very surprising to me that it did not succeed.  If mum wasn’t asked or told, how could she object? She didn’t know it was happening. And if she HAD objected, Brent could have argued that she didn’t have capacity to object.

There’s quite a big difference between getting someone’s consent, and saying that something is okay because they didn’t object. Especially if they didn’t know.  It is a bit like being ten and saying “Well, mum didn’t tell me that I COULDN’T eat nine Penguin bisuits whilst she was upstairs”

OR

If for example, I have the opportunity for a canoodle with Keira Knightley, I would not expect to be able to tell Mrs Suesspicious Minds that it was perfectly fine because she had not explictly objected to my doing it.  Particularly if I didn’t tell her in advance that it was a possibility, thus giving her the chance to object.  I think that Mrs Suesspicious Minds would be absolutely entitled to take the view that this is the sort of thing that I’d need to raise in advance and that only with her explicit consent (which would not be forthcoming) would it be okay.  [I’d best make it plain that this is an illustrative hypothetical example only, and that I would never put myself in this situation. Not with Keira Knightley.  With Rachel Weisz?  No, I still wouldn’t. Honestly. ]

24. …I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.

  2. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is “in accordance with the law”. The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
  3. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular: a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;c. Removal under either s38 or s44 requires prior judicial approval;d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children’s Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.
  4. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses “Support for Children and Families”. As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and “involves no compulsory curtailment of parental rights“. Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
  5. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
  6. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from “providing a child with suitable care”, remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children’s Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
  7. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
  8. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under “this section” ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
  9. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was “necessary” and therefore in accordance with Article 8(2) ECHR].

[I think that I’d probably distinguish the Nottingham case – in that case, mum DID know that the baby was being removed and she DID object. So clearly the social workers in the Nottingham case couldn’t have been using s20(1) (c) as a legal basis for removal. Nevertheless, THIS Court has found that s20(1) (c) requres active capacitious parental consent, not mertely the absence of an objection]

The question then arises about delay in issuing proceedings

If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother’s Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

The LA were ordered to pay £3,000 in compensation and £750 in costs.

The LA did try to escape compensation by saying that the declaration that they had breached mother’s human rights and their apology was sufficient. Sadly for them, they had tried one of those “modern” apologies, where the person says “I’m sorry that X made you feel bad” rather than “I’m sorry that I did X, that was wrong of me”

  1. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS’s best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority’s apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
  2. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel’s position statement, says “the Local Authority does not accept that its actions breached the mother or AS’s article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her.” Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS’s removal and she wants to make sure that this could not happen again to another child.

 

 

I think I might have tried another line – I’m not sure it would have worked either, but I would have considered it. On 9th October, the LA or any other LA, could have had no idea whether mum might be suffering from a really short episode of ill-health and be home the next day, or whether she might be ill for six weeks or more.  As they wouldn’t be able to rely on mum having capacity to sign a s20 consent  (pace Hedley J’s decision) and they can’t rely on s20 (1) (c) if the Judge is right here, that puts any LA where a mother has an episode of mental ill-health which might mean them being hospitalised in a position where they HAVE to seek an EPO / ICO.  That might in itself not be a terribly healthy thing for mum to hear at a time when she is getting treatment, and might wildly escalate a situation which could, after all, have been resolved the very next day with mum getting discharged with a change in medication.

 

The ultimate thrust of this judicial decision is to drive LA’s to issue care proceedings the moment that a mother or father providing care for a child is taken to hospital or has an episode of florid behaviour.  That might led to a number of care proceedings being issued prematurely, and also to a situation where mothers feel undermined and criticised by professionals just at a time when they need support and a working relationship.

You might say that making use of s20(1) (c) as a very short term holding position so that the child can be cared for whilst it is established whether the episode of mental ill-health is very short-lived and can be stabilised in a day or two, might be much more illustrative of working in partnership than dashing off to Court at a time when mother is unwell, stressed and anxious and where she won’t have capacity to instruct someone to fight the case, won’t have an Official Solicitor to represent her, may not actually be allowed by the hospital to be present and will be told that a Court are ruling that she presents a risk to her child EVEN THOUGH she has recognised that she is unwell and asked for help.

 

(I’d have to concede that in this particular case there are some major problems with that argument…firstly taking the child away from a neighbour who mum has asked to care for the child and who is willing to do it doesn’t really help my argument here, and secondly that NOT TELLING mum for a week doesn’t help in the slightest.  I’d mean more in cases where no alternative care provision has been made and mum is told immediately or as soon as practicable. )

 

But ultimately the Court interpreting that s20 (1) (c) requires active parental consent also puts LA’s in a position where they’d have to go to Court for a parent who is in a road-traffic accident and who is in a coma. The child can’t be accommodated under s20 (1) (c), the parent can’t consent. If the parent hasn’t got someone else who steps in to look after the child, how does this work?   You couldn’t conceivably argue that the child is at risk of harm from the parent, but what are you going to do?   [Accommodate, and take the chance of being sued afterwards is probably the answer]

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Court proceedings were a shambles

Posted on October 12, 2015 by suesspiciousminds

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    “As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  3. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  4. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  5. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  6. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

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Missing boy and cancer treatment

Posted on October 8, 2015 by suesspiciousminds

 

The news that the parents of a child have taken him abroad for cancer treatment and that the Courts here are dealing with the case have echoes of the Ayesha King case which was such big news last year.  I wrote at that time about some of the legal issues about when a parent can decide to reject medical advice about their child

Parents deciding not to go ahead with cancer treatment

 

 

The Press reports about this particular child are in most of the newspapers today – here’s an example from the Guardian   (I picked up today that I always tend to use the Guardian for these, but they don’t sponsor me.Yet)

 

http://www.theguardian.com/society/2015/oct/07/boy-needing-urgent-surgery-for-cancer-disappears-from-home-in-england

 

The judgment from Mostyn J is available, and people may want to read it

Re JM (a child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2832.html

 

The boy is 10 years old. His parents are originally Polish but have lived here for two years. Very tragically, the boy JM has a very rare and aggressive cancer on the right hand side of his jaw. The medical advice is that it should be removed. If it is not removed soon, then JM will suffer an agonising and painful death.

 

 

  1. The operation would be lengthy, lasting up to 12 hours. There is a 2% risk of mortality or morbidity in the operation. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. The result would be that J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and need to be on a softish diet in the long term. Above all of this is the estimate that he has a 55% – 65% chance of survival for 5 years. Therefore there is a 35% to 45% chance of a fatal cancer re-emerging in that period. This might be at the same site or elsewhere in the body, most likely the lungs. All of these statistics are based on adult patients. It is not known whether they are equally applicable to children as the incidence of this disease in children is so rare that there is insufficient data on which to found empirical conclusions and predictions. There are only a handful of children in this country with this cancer. Dr X has treated five or six in 16 years of practice.
  2. I have seen photographs of a child who underwent this surgery. The facial swelling before the operation is very pronounced indeed. It is huge. At present J’s swelling is about a third of that size. The photographs post-operation show extensive skin grafts under the jaw. J may be able to escape skin grafts. The child in the photographs does not appear greatly disfigured, although the result of the operation is clearly noticeable.
  3. There is no doubt that the proposed surgery carries serious risks. However in the very clear opinion of Dr X they are risks which should be taken given the awful alternative. In her oral evidence she stated:

    “I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running – Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one.

    Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with – so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable.”

 

 

The parents did not agree to the surgery, and nor did JM (though of course at aged 10 his views aren’t determinative)

  1. J’s parents do not consent to the operation. Neither does J. He has written to me to say “I don’t want the operation and there is not 100% [chance] to survive after the operation”. To Dr X he put it more graphically. He screamed out: “I don’t want to have it, because I don’t want to have a foot in my mouth”.
  2. J’s parents prefer to seek to treat him with Chinese medicine. The practitioner has not treated a cancer like this before and his technique is to treat the whole body to seek to promote overall wellness. The evidence before me is that even in China, where the use of Chinese medicine is widespread, surgery is the standard treatment for a cancer of this kind.
  3. J’s parents have explained to Dr X why they do not consent to the operation. She told me:

    “They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process.”

 

The hospital can’t carry out the surgery if the parents don’t consent, unless the Court authorises it. Hence the hospital made an application to Court. The parents would have been able to attend that hearing and make their arguments, but did not attend.  Of course, in the Ayesha King case, the parents favoured a particular form of treatment proton beam therapy, which wasn’t available in the UK but was a form of treatment that was recommended in other countries for cancer treatment. Here, note that not even in China would this form of cancer be treated by “chinese alternative medicine”

 

The Judge weighed up the issues and the parents known objections and the child’s views very carefully, and came to the conclusion that the only option for JM was for this surgery to occur.  We now know that the child has been removed from the country – possibly to Poland, possibly to China.

You may be asking whether it really should be up to the Polish courts to decide, if the parents are from Poland and that’s where they are physically located there – if they disagreed with English doctors and decided to go back home, what’s it to do with the English Courts? Well, Mostyn J did explicitly deal with this

 

  1. It is possible that J is now in Poland. On 17 September 2015 when these proceedings were commenced J was habitually resident here in England. Therefore under Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility this court had jurisdiction over him at that time in relation to the matter of parental responsibility then in controversy namely his medical treatment. Since then it is possible (but unlikely) that with joint parental authority his habitual residence has changed to Poland. If so, it may be that courts here do not have jurisdiction to determine where or with whom he should live. As things stand at present however the evidence is that J remains habitually resident in this jurisdiction.
  2. However, there is no doubt that this court is seised of the specific issue of J’s medical treatment. Therefore under Article 19 the Polish court must decline jurisdiction in relation to this matter in favour of this court. I have explained that implementation of my primary decision will require a further hearing before me. If J is now permanently in Poland it may be that it would be appropriate for that aspect to be remitted for decision by the Polish court under Article 15

[It stays with the English Courts for now – if the parents have genuinely moved permanently to Poland, then an application can be made to transfer the case to the Polish Courts]

We will have to see how this story develops. And just as with the Ayesha King story, your heart absolutely goes out to the family who are in the middle of an absolute nightmare and just hope that a resolution can be reached.

 

[Mostyn J being Mostyn J, he still managed in the midst of all this to explain that if the imposition of treatment is on a 16 or 17 year old, the application ought properly to be made solely under the High Court’s inherent jurisdiction and not to a family Court under the Children Act and  hence

Note 1 It is for this reason I think that Ian McEwan’s excellent novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion, is in fact incorrectly titled.

 

which leads me to think that at either a book club or some cocktail party, someone has made the mistake of asking Mostyn J what he thinks about Ian McEwan’s novel and has wished twenty minutes later that they hadn’t.  I LOVE Mostyn J, in case you didn’t realise. His judgments always contain something extraordinary and marvellous.  I know that Ian McEwan read a LOT of judgments when he was researching his novel. If he still keeps up with them, he may be pleased to (a)  be in one, and (b) have received a positive book review.  I suspect he’ll be content with the title of “The Children Act” rather than “The Inherent Jurisdiction of the High Court”   ]

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Totally radical, dude

Posted on October 8, 2015 by suesspiciousminds
"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

Click to access pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  that “in

this particular process it is the interest of the individual child that is paramount. This

cannot be eclipsed by wider considerations of counter terrorism policy or operations.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

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NRA and Others 2015 (the Charles J DoLS case)

Posted on October 5, 2015 by suesspiciousminds

The NRA is often in the news, generally after some terrible incident in an American school and usually positing the opinion that if only everyone on the scene had had a firearm rather than just the sociopathic person shooting everyone nothing bad would have happened.  This is a different NRA. So if you have come here looking for the National Rifle Association (hi Piers, bye Piers) then you’re in the wrong place.

 

This is Charles J’s decision in a group of linked cases designed to test whether in a case where a vulnerable person’s liberty is being deprived as a result of their care package, that person HAS to be represented. The President, said no, we could distinguish between cases where the deprivation is contentious (when they should be represented) and where it is not contentious (where a streamlined fast-track system could be in place where there might not even be a hearing)

 

This came before Charles J as a result of the District Judge who had first got the linked cases realising that this was a real can open, worms everywhere scenario   , described by me here   

Deprivation mmmmeltdown

 

This is chief is a pragmatic engineering solution to the huge mountain of such Deprivation of Liberty cases that are going to come before the Courts as a result of the Supreme Court in Cheshire West broadening out the criteria of what consituted a deprivation of the person’s liberty.

Thus, if you don’t do Court of Protection work, you need read no further, and that may be a relief to you, because the thing that most lawyers know about Charles J is this gem from the Court of Appeal in Jones v Jones 2011 :-

http://www.bailii.org/ew/cases/EWCA/Civ/2011/41.html

 

The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”

Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.”

 

Of course, I have no views on this whatsoever, and merely report the judicial decision of the Court of Appeal in that regard.  I may, however, have prepared a small packed lunch, put on a warm coat and ironed my Welsh flag before I sat down to tackle the judgment in NRA and Others 2015.

 

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

 

 

My mission-statement (sorry I just shuddered) when I began this blog is “I read it, so you don’t have to”.  I have been putting off this particular task for quite some time.

As I outlined, the President had arrived at a two track process – where P (the vulnerable person) would only be represented in a deprivation of liberty case where the deprivation or the plan was contentious.  However, when the Official Solicitor in the case appealed that decision, the Court of Appeal had two things to say – firstly that it hadn’t even been a decision so there was nothing to appeal, but secondly that P should ALWAYS be represented.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

These cases were then the first raft of non-contentious cases that were run as test cases to work out what the hell was going on. It had become really apparent that the Official Solicitors office, who normally represent P would be utterly overwhelmed by demand and that the practical implications of following the Court of Appeal’s guidance (since it is obiter and not ratio) would be to grind the whole system to a halt, and more importantly make it impossible for P to be represented in a contentious case.

So there were a few questions

Should P always be represented?  Could P be represented by a litigation friend instead of the Official Solicitor? Would that litigation friend be able to speak in Court if they didn’t have rights of audience?

Re NRA and Others 2015

http://www.bailii.org/ew/cases/EWCOP/2015/59.html

If I tell you that the judgment contains 269 paragraphs, and that a full 16 of them come under the sub-heading of “Flaws and gaps in the reasoning of the Court of Appeal”  you get much of the flavour of the whole thing without having to read it all.  A state of affairs for which I envy you.

 

It is a curious thing, and a dreadful position for the Judge to be placed in. To make this decision right in law, and respect the well-established principle of Winterwerp v Netherlands  1980 ..it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” …    and the Court of Appeal’s steer which though NOT binding could honestly not have been clearer, the Judge would have to break the Court of Protection system. Barely any case would be heard and injustice done to thousands of cases. The alternative was to take the pragmatic engineering solution of  “This can’t work if we insist on P always being represented, so we’re not going to do that”.   However, it has to be legally dressed up so that it at least looks as though it can withstand an appeal.

 

Charles J makes the following conclusions, which he thankfully summarises at the end

 

A brief summary of my conclusions is that:

(1) P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.

(2) In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.

(3) I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.

(4) In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.

(5) I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.

(6) In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.

(7) That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either

i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or

ii. joining P as a party.

(8) So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.

 

He also ruled definitively that a litigation friend can, if appointed by the Court, be given the power to conduct litigation

 

Gregory v Turner [2003] 1 WLR 1149, at paragraphs 50 to 58, it is common ground that if and when the court appoints such a litigation friend:

i) it can also give him or her a right of audience and the right to conduct litigation in relation to those proceedings (see Paragraphs 1(2)(b) and 2(1)(b) of Schedule 3 to the 2007 Act),ii) it can remove those rights, and further and alternatively

iii) it can end the appointment of the litigation friend (see COP Rules 144 and 140).

 

[He described the arguments to the contrary made by some of the parties as ‘arid’.  I can’t think of anything to say about that which isn’t churlish, so let’s move on. ]

And that conducting litigation can include anything that P could do themselves as a litigant in person if only they had capacity – so definitively, if a Court appoints a litigation friend and grants them the right to conduct litigation, they can do everything – they can deal with correspondence, draft a statement and address the Court. They can be given rights of audience, even though they would not be someone who has them.

 

I have mixed feelings about this decision – it was an impossible position for the Judge to be in. To make a fair decision would have broken the Court of Protection and caused far more harm to all of the vulnerable people who require its services. On the other hand, I just agree with Winterwerp and feel that if someone is being locked up even if it is ‘for their own good’ they should have someone speaking on their behalf and making such points as ought to be made.

The only thing I would say is that by setting out a huge section entitled “Flaws and gaps in the Court of Appeal’s reasoning”,  we now have a pretty solid indicator that if a decision is made relying on this judgment and someone intends to appeal it, the Court of Appeal are going to be rather interested in getting to grips with it. That really just places even more uncertainty into an area of the law which has been nothing but uncertainty ever since the President first encountered the words “Cheshire West”

The Law Commission reforms of deprivation of liberty can’t come soon enough.

 

 

Should Mr Heston be represented here? Does the net satisfy the Cheshire West 'acid test'?

Should Mr Heston be represented here? Does the net satisfy the Cheshire West ‘acid test’?

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No winners here only losers

Posted on October 1, 2015 by suesspiciousminds

 

The Court of Appeal dealt with an intractable contact case in Re Q  a child 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/991.html

 

In this case, which involved a boy aged 8, and private law contact proceedings that have now been going on since May 2008, some seven years and almost his entire life. The boy lives with his mother and the father had not been able to have meaningful contact since the parents separated in February 2008.

The trial judge, His Honour Judge Brasse, reached the following conclusions

In his judgment, Judge Brasse set out that:

      1. “the conclusion that the court has come to on the basis of having heard and read a huge amount of evidence over those years is this:
  • the father is well disposed towards his son and has never done him any deliberate harm;
  • the allegations against the father are manifestly false;
  • the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;
  • the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother’s hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not.”

 

We don’t know what those allegations are, but can probably guess at their approximate nature. The important thing is that after seven years of litigation the wealth of evidence before the Court was such that it was clear that false allegations had been made against dad in order to thwart his contact and that father would be perfectly safe to have contact.

 

Sadly, as a result of this behaviour by the mother, the Judge was also of the view that ordering contact to take place now would also harm the child. He set out, rather mournfully, the possible options before the Court

 

  1. He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

    i) To order the mother again to allow contact: He rejected this, accepting KD’s advice that it would, for reasons he identified, be harmful to Q.ii) To order a section 37 report and engage the help of the local authority: He agreed with KD’s view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

    iii) To bring the proceedings to an end without further order: He described this as the counsel of despair.

    iv) To enlist the assistance of the Violet Melchett Centre.

  2. In relation to option (iii), Judge Brasse said this:

    “The third possibility is the counsel of despair – that is that notwithstanding the harm which I have found as a fact to have been caused to this child by the mother’s influence, and the harm that he would suffer from not being able to develop a relationship with his father, which I have also found, the course of least harm would be to bring these proceedings to an end without further order. That would leave Q living with his mother, who provides well for him materially and educationally and, apart from supporting the relationship with his father, provides a loving atmosphere for the child too.

    [Counsel] submits on behalf of the father that that would leave Q with an entirely false view of his father as some kind of monster; that would do huge harm to Q in the long term, because Q as he grew older would reflect that part of his biological inheritance comes from a person who is that horrible. He would have no sound or realistic understanding of his identity because he would be cut off from his father and his father’s family. With all that I agree. But, once again, at this juncture to force a child against his wishes into contact sessions would cause just an aggravation of the harm which was manifest in the reports the court received.”

  3. In relation to option (iv), Judge Brasse said:

    “The fourth possibility which was foreshadowed in the guardian’s position statement but developed in the course of argument was that as the child has been seriously emotionally harmed (I would attach the expression, “significantly emotionally harmed”), as a result of the care he has received – that not being what it would be reasonable to expect a parent to give him – some affirmative action should be taken to address the harm and, if possible, reverse it. As, in the guardian’s view, removal of the child from the mother’s care is not a reasonable option, if this child’s welfare is to be protected and safeguarded, then at the very least the court should ensure he receives psychological intervention.

    And there, it was submitted, appeared a glimmer of hope. The Violet Melchett Centre is a well-established NHS resource staffed by very experienced people who have, over the decades, helped children who have been harmed as a result of parental conflict. This child, I have found as a fact, has been significantly harmed as a result of parental conflict. The Centre can offer help of an effective kind if the parents themselves are willing to participate. Here, [the mother] is. She has said so in terms to this court. Further, she has agreed that she would not place any impediment in the way of [the father] to participate in that therapeutic process if he wished; and, thirdly, it would be possible to ensure that the therapists were provided only with, as I put it, “neutral” information …

    The object of the sessions at the Violet Melchett Centre would be, as I have said, to repair the emotional harm; possibly if the therapist thought this was helpful, to promote communication between the parents of a helpful kind; and possibly to revive the seriously damaged relationship between the child and his father.

    Violet Melchett have informed the guardian they would not start work until these proceedings have come to an end, because the continuation of the proceedings cause an additional stress for the child which is out of their control.”

  4. The judge’s overall conclusion was summarised in these two paragraphs:

    “I find the child, as I have explained, has suffered significant emotional harm which continues to go unaddressed while he is living in an atmosphere which is so hostile to his father, and I find that there is clearly a case that this child needs therapeutic intervention as he is unlikely to recover from the emotional harm unless such steps are taken. I am persuaded that he needs a cessation of these proceedings for that therapeutic intervention to be effective.

    … So my conclusion is that I shall make a specific issue order, and I shall order that both parents co-operate in the referral of this child to the Violet Melchett Centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the Violet Melchett Centre recommend.”

 

 

Somewhat surprisingly, the mother had expressed a willingness to participate. The difficulty that the Judge found himself in, having dealt with options three and four in the way he had, was to be told that the staff at the Violet Melchett Centre had a clear view that in order to meaningfully work with the family, the court proceedings had to come to an end.  That of course meant that the proceedings, which had lasted seven years and where mum had tried to thwart dad having contact or a contact order would end with no order about future contact.

Understandably, dad appealed this decision, feeling that it flew in the face of fairness and the principles that the Court ought to not give up on contact without properly exhausting all of the options.

 

  1. Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.
  2. The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

    “• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

    • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

    • There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

    • The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

    • The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

    • All that said, at the end of the day the welfare of the child is paramount; ‘the child’s interest must have precedence over any other consideration.'”

  3. The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.
  4. The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

    “14 … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

    15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.”

  5. We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

    “Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account.”

  6. The father’s case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

    i) There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.ii) Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge’s own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

    iii) In the circumstances, and having regard to all these matters, the process has not been compatible with the father’s Article 6 and Article 8 rights.

  7. The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence

 

The Court of Appeal, however, felt that His Honour Judge Brasse had done the right thing in this case.

 

  1. In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q’s relationship with his father.
  2. The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.
  3. In my judgment, it is quite impossible for us to interfere with Judge Brasse’s decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.
  4. In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.
  5. It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.

 

 

In short that all legal solutions to the case which had a chance of working had been tried and had not worked, and the Judge was right to have looked outside of the legal system for a solution.

The Court of Appeal then delivered a very powerful message to the mother – let us hope that it did not fall upon deaf ears

 

I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.

 

 

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Funding of intermediaries

Posted on September 25, 2015 by suesspiciousminds

[See last blog]

 

An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.

 

http://www.familylawweek.co.uk/site.aspx?i=ed145039

 

  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.

 

  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:

 

“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”

 

  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.

 

 

For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.

 

So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.

 

 

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Intermediary, fair trial and Legal Aid Agency

Posted on September 25, 2015 by suesspiciousminds

 

The High Court case of West Sussex CC v H and Others 2015 throws up an interesting issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2439.html

 

This was a fact finding hearing, where the central allegation was that either mother or her boyfriend W, had caused a brain injury to a child who was two years old. The injury had at the time been life-threatening.

 

This is one of the most serious sorts of cases that come before the family Court. A finding that mother had caused that injury or failed to protect the child would have serious consequences for this mother’s prospects of keeping the children and possibly of any future children she might have. Also, the process itself would involve a lot of documents, some complicated issues and really forensic dissection of the events that happened that night, in a lot of detail.

The mother had undergone a cognitive assessment by Dr Nigel North, and he had concluded that she would need the assistance of an intermediary when giving evidence.

Intermediaries are used in criminal proceedings, and they play a very important part in making sure that a vulnerable witness can give the best evidence that they are able to.

 

The Registered Intermediary, having taken the intermediary oath, assists during the giving of evidence. They sit alongside the witness in the live link room (or stand next to them if they are giving evidence in court) in order to monitor communication. They intervene during questioning when appropriate and as often as appropriate in accordance with the ground rules and the recommendations in their report.   [taken from http://www.theadvocatesgateway.org/intermediaries ]

 

However, though that was a clear recommendation and not challenged by anyone, she had to give evidence without an intermediary as the Legal Aid Agency had refused to fund one.

 

  1. The case was before me for case management on the 24th April 2015 and following the orders made on that day it was listed to be heard in July 2015. In addition to the complexity of the medical evidence there were concerns about the ability of M to fully participate in, and understand the proceedings because of a report by Dr Nigel North (a psychologist) dated the 6th March 2015 which recommended the use of an intermediary. The solicitors for M had applied for public funding for an intermediary assessment which was refused by the Legal Aid Agency (LAA). There followed attempts by the solicitors to appeal against this decision which were unsuccessful. By the time the solicitors approached the court for approval for funding an intermediary without a further assessment to support M during the trial in July there were none available to come to court.
  2. Given her history, which was never in dispute, it is not clear to me why it was considered necessary to have a further assessment by qualified intermediary except that Dr North is not an intermediary himself; the stance of the LAA did not assist when coupled with the insistence by Communicourt that they carry out an assessment separately from supporting Y at court. This led to the refusal of funding for that initial assessment. There is undoubtedly a pressing need for clear guidance and rules similar to those in criminal proceedings when it comes to the treatment of vulnerable witnesses. It is to be hoped that the proposed addition to the Family Procedure rules will come in to force sooner rather than later.

 

There would not have been a problem obtaining an intermediary in a criminal court*, but in a family court if the Legal Aid Agency say no, that’s the end of it.  [*I’m not a criminal lawyer, so I might be utterly wrong here and if someone more knowledgeable tells me otherwise, I’ll amend.  Of course in a criminal case, the Judge could throw the trial out for abuse of process if the LAA refused to provide an intermediary where one was necessary, and that’s a bit more difficult in family proceedings. You don’t want to decide family cases and the safety and future of children on a ‘technicality’]

 

Those involved in the case worked with the Judge, Russell J,  to come up with the fairest solution that they could.

 

  1. On the first day of the fact finding trial I heard a ground rules hearing to decide how the case could progress without the assistance of an intermediary taking into account the recommendations which had been made by Dr North. It was agreed that the trial could go ahead with frequent breaks to allow M to have time to consider the evidence broken up into shorter more manageable sections. There were to be breaks every 30 minutes or more often if needed. M’s evidence was to be similarly divided; she was to be asked short questions and cross-examined by one counsel only, who would agree the area of questioning with other counsel. Counsel for the local authority undertook this task with the assistance of the guidance provide by the ATC in their toolkit for family proceedings. As there were seven files of evidence the documents that M was to be referred to during her evidence were placed in one file; in addition it was agreed that she would be supported by someone she knew from her solicitor’s firm to find pages or if she needed any other assistance.
  2. M’s own mother L is a respondent to these proceedings as she had originally been named as a possible perpetrator and is closely concerned with the local authority’s future plans for the care of Y and X. She was able to offer M additional support throughout the hearing.

 

 

[The outcome of the case was that the Judge found that mother’s boyfriend W, had caused the injury but more out of carelessness or recklessness than by any intention to hurt the child  :-   I do not consider that there is evidence to support any suggestion that the impact was deliberately inflicted and consider it more likely that it was a reckless and foolish action taken by a young man who has no experience as a parent, primary or main carer of a child who is still very young.   There was no finding that the mother had done anything wrong  M’s conduct since that night has been congruent with a parent seeking an answer to what has happened to her child and has not been self-serving or defensive. ]

 

 

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Concurrent affairs

Posted on September 24, 2015 by suesspiciousminds

 

The Court of Appeal had to look at what happens or what should happen, when there is a conflict between the Local Authority plan for a child and what the foster carers (who had signed up as concurrent carers, or ‘foster to adopt’ under the new language of the statute) thought the plan should be.

 

Re T (a child: Early Permanence Placement) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/983.html

  1. The facts can be stated quite shortly. T was born on 20 November 2014. T’s parents signed an agreement in accordance with section 20 of the Children Act 1989 the next day, 21 November 2014, and T was placed the same day with a married couple I shall refer to as Mr and Mrs X.
  2. Mr and Mrs X had been approved as adopters by the local authority on 14 November 2014. Shortly before T’s birth, on 17 November 2014, they were invited by the local authority, and agreed, to care for T, on his birth, as foster carers with a view to adopting him if adoption was required: what is known as an early permanence placement. T, as I have said, was placed with them on 21 November 2014. The local authority commenced care proceedings, with a plan for adoption, on 3 December 2014. Mr and Mrs X signed an early permanency placement agreement the same day. On 18 December 2014 an interim care order was made. It remains in place. T remains with Mr and Mrs X.
  3. On 29 January 2015 T’s paternity was established by DNA testing. At an adjourned case management hearing the next day, 30 January 2015, the father indicated that he did not wish to be assessed as a carer for T, but he put his parents forward for assessment. An initial viability assessment of the paternal grandparents was completed on 13 February 2015. It was positive. The full kinship assessment of the paternal grandparents was completed on 1 May 2015. Again, it was positive. Following a professionals’ meeting on 8 May 2015, the local authority told Mr and Mrs X that it had abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. This plan is supported by both the mother and the father, who accept that neither of them is able to care for T. The position of T’s guardian is that the court does not at present have before it the evidence upon which to make a proper evaluation of what the guardian says are the two realistic options: a family placement with the paternal grandparents or adoption by Mr and Mrs X.
  4. On 20 May 2015 Mr and Mrs X issued an application for leave to apply for an adoption order (see sections 42(4) and 44(4) of the Adoption and Children Act 2002). The application came before Judge Troy on 22 May 2015. By then the care proceedings had been on foot for a little over 24 weeks. She made two orders. In one she gave Mr and Mrs X leave to apply for an adoption order. In the other she joined them as parties to the care proceedings. In accordance with directions she gave on that occasion, the matter came back before Judge Troy for directions on 1 June 2015. The paternal grandparents indicated their wish to apply for a special guardianship order (their formal application followed on 19 June 2015). Judge Troy joined them as parties to the care proceedings and consolidated the care proceedings and the adoption proceedings. She extended the time limit for the proceedings (see section 32(5) of the 1989 Act) to 34 weeks.
  5. On 22 May 2015 Mr and Mrs X gave the local authority notice in accordance with sections 44(2) and 44(3) of the 2002 Act.

 

There’s quite a lot in there, so I’ll break it down.

The Children and Families Act 2014 tells Local Authorities that they must actively consider looking for a “foster to adopt” foster placement when they are placing a child. That’s a set of foster carers who are also approved as adopters, with a view to if things pan out that the child can’t be placed within the family, those carers will go on to adopt the child. The idea is that it reduces uncertainty and delay for the child and cuts down the number of moves.

The Local Authority did that in this case (and did nothing wrong in doing so – that’s what the Act tells them to do). The foster carers entered into the arrangement thinking that they would probably go on to adopt the child.

The child’s grandparents put themselves forward as carers, the Local Authority assessed them and considered that they would be able to care for the child.

The Local Authority told the foster carers that the plan was no longer adoption, but was placement within the extended family.

The foster carers disagreed and put in their own private application to adopt.

The Judge gave the foster carers the leave of the Court to make that application.

Then the Local Authority, the father and the grandparents appealed.

 

 

The appeal arguments of the LA, father and grandparents were these:-

 

  1. The grounds of appeal and the parties’ submissions
  2. As I have said, the father, the paternal grandparents and the local authority made common cause. In large measure their submissions were very much to the same effect and made the same points. I shall take them together.
  3. Their submissions can be summarised as follows:i) Judge Troy was wrong to give Mr and Mrs X leave to apply for an adoption order. Their application was premature and should not have been considered until such time as the court had determined that T’s future welfare required his adoption rather than a family placement. That process has not been in any way altered by the implementation of the statutory early permanence placement scheme. Mr Tyler adds that, if the appeal against Mr and Mrs X’s joinder is successful, their application for an adoption order will be left hanging in the air. So, he submits, on that ground also the appeal on this point should succeed.

    ii) Furthermore, Mr and Mrs X had failed to demonstrate that they had a real prospect of success in relation to an application for an adoption order, and that T’s welfare required their being given leave to apply for, such an order.

    iii) Judge Troy was wrong to join Mr and Ms X as parties to the care proceedings and failed to consider the procedural ramifications and consequences of doing so.

    iv) Judge Troy failed to have sufficient regard or attach appropriate weight to the authorities about the primacy of family placements.

    v) Judge Troy failed to have sufficient regard or attach appropriate weight to the fact that Mr and Mrs X were temporary foster carers and that in the early permanency placement agreement dated 3 December 2014 they had expressly agreed that their adoption of T would be contingent on his not being rehabilitated to his family.

    vi) On the contrary Judge Troy gave excessive weight to the facts (a) that Mr and Mrs X were approved adopters and that the placement had been made by way of an early permanence placement, (b) that they had cared for T for 6 months and (c) that there was evidence of attachment between T and them.

    As the argument developed, it became apparent that there was a degree of overlap in these submissions.

  4. By way of elaboration, a number of points were made which it is convenient to take together.
  5. Mr Tyler submitted that it is wrong in principle to allow state-sanctioned carers to acquire the right to set themselves up against a family member as a potential permanent carer for a child simply by virtue of an unexceptional period of time caring for an unexceptional child in an unexceptional case. Particularly is this so, he says, where, as here, the aspiration of the foster carers is the non-consensual adoption of a child outside his birth family. As the father put it in his grounds of appeal, Mr and Mrs X are the product of the care process and should not be part of it. According to Mr Tyler, there is simply no place in the statutory process under Part IV of the 1989 Act for foster carers who are not otherwise entitled to participate by virtue of family status, statutory responsibilities, or relevant social work or other expertise.
  6. Mr Donnelly submitted that the analysis of adoption as an option in care proceedings is limited to consideration of adoption in principle and does not involve an assessment of the individual merits of particular proposed adopters. Least of all, he submitted, should care proceedings become, as would be the consequence of Judge Troy’s order, an arena in which prospective adopters should be enabled to probe alleged deficits in a family placement and compare it unfavourably with what they could offer. It is the children’s guardian whose task it is to scrutinise the local authority’s plan and, if appropriate, criticise it and invite the court to reject it. To like effect Mr Tyler submitted that the proper people to test the local authority’s assertions, assessments and care plans, in order to assist the process of quasi-inquisitorial judicial critical analysis in the care proceedings, are the parents and the child(ren), the latter through the children’s guardian. Miss Anning made much the same point when she submitted that the very idea of a competition between the birth family and prospective adopters at the stage of deciding whether a child should be placed for adoption is to shift the focus away from a true analysis of what is fundamentally in the child’s best interests in favour of the competing views of the adults. And, she suggested, it ran the risk of a simple comparison as to which placement would be better for the child, the very thing that all the jurisprudence demonstrates is not the right question (see, for example, Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, referred to below).
  7. Accordingly, it was submitted, Mr and Mrs X’s joinder to the care proceedings serves no useful purpose; it does not provide a means for the court to consider an option that it otherwise would not. Moreover, there is, they say, no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed. If and to the extent that the court needs to consider adoption as an alternative to a family placement all it needs to know is that T has the best prospects of being adopted given Mr and Mrs X’s wish to adopt him.
  8. As Mr Donnelly put it, the fact that this was an early permanence placement did not give Mr and Mrs X an elevated status, nor did that (or any of the other matters) create a ‘status quo’ requiring the kind of balancing of ‘status quo’ and ‘family’ contemplated in Re M’P-P (Children) [2015] EWCA Civ 584 (see below). In reality, as Mr Tyler put it, the asserted ‘status quo’ and attachment in the present case do not differ in any significant way from what exists in a large proportion of similar care cases where a child has been successfully fostered for a short, interim, period.
  9. Mr Tyler conjured up the spectre of social engineering. He suggested that parents in care proceedings will be very much less likely to agree to the potential benefits of a fostering for adoption placement. He pointed to the inevitability of delay given the requirements of sections 42(4) and 44(4) of the 2002 Act

 

 

Summarising these very briefly – it is the task of the Court to decide what orders should be made, and Mr and Mrs X (the carwers and would-be adopters) come into the equation IF AND ONLY IF the Court is satisfied that nothing other than adoption would do. To bring Mr and Mrs X into the equation before that point potentially muddies the waters and gets into a social engineering situation where the Court is deciding which family has more to offer the child, Mr and Mrs X or the grandparents.

 

The arguments against the appeal were made by the adopters and the Children’s Guardian. (I pause here to note that the collective brainpower in the Court room must have been making the air crackle)

 

  1. Essentially, Miss Scriven and Miss Fottrell submitted that Judge Troy was right to decide as she did and for the reasons she gave. There are, they said, two realistic options before the court and Judge Troy was right in her approach and in recognising that the court, in the light of the statutory framework and the authorities, had to evaluate both the realistic options and to assess each in the context of the other. How, Miss Scriven asked rhetorically, was the court to do this, as she put it, balancing the competing arguments for and against those two options, unless Mr and Mrs X were able to participate in the care proceedings and make representations?
  2. Miss Scriven submitted that the local authority’s approach was far too rigid and absolute, and inappropriately minimising of Mr and Mrs X’s role. As the guardian put it, whatever the strength of the arguments in favour of a family placement, it cannot be said that Mr and Mrs X’s application has no prospect of success. After all, as Miss Scriven pointed out, Mrs X is the only mother T has ever known. What is required is for each case to be looked at in a case-specific way. Reliance was placed on what McFarlane LJ had said in Re M’P-P (Children) [2015] EWCA Civ 584, paras 46-50 (see below). Reliance was placed on what was said to be the reality that T and Mr and Mrs X have, as a result of Mr and Mrs X caring for T, an established family life together. Mrs X, it is said, is at the centre of T’s life. Miss Fottrell said that Mr and Mrs X are de facto parents and if T is to be removed from them they need to be heard, particularly if what is being proposed is T’s placement, albeit within his family, with people with whom he has no relationship. T’s welfare requires this reality to be carefully examined, and this requires the participation of Mr and Mrs X, precisely because it is not an argument that will be supported either by the local authority or by the birth family, all of whom will be arguing vigorously against it. As Miss Fottrell put it, it is difficult to see how Mr and Mrs X’s case could be properly heard if they were not joined to the care proceedings.
  3. Furthermore, and relying upon Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608, [2005] 1 FLR 308, it was said that there exists between Mr and Mrs X and T ‘family life’ within the meaning of Article 8, which in turn, it is said, entitles them to a fair hearing in accordance with Article 6: see Soderback v Sweden (1998) 29 EHRR 95.

 

Again, in a summary – as Mr and Mrs X are the only people the child has ever lived with and they have an article 8 right to family life, their application for adoption is an application they can legitimately make, and a legitimate option before the Court. If they are robbed of the chance to make such an application, how can that argument be properly made before the Court?  And if they don’t get the chance to make their application, their family life is being disrupted without them having a chance to contribute to the arguments.   [Also that as Re B-S requires the Court to consider all of the realistic options, how can the Court fairly proceed without one of them being presented]

 

Boiling it all down, it seems to be this central dilemma

 

“Do foster to adopters have a stake within care proceedings and can make their arguments just as any other interested party, or ought they stay out of it and just wait for the Court to decide whether this is an adoption case at all?”

 

 

The historical approach of the Court to joining foster carers to the proceedings:-

 

  1. From the very earliest days of the 1989 Act (which, it will be remembered, came into force in October 1991), the court has set its face against the joinder in care proceedings of foster-parents or prospective adopters. Two decisions of this court explain why.
  2. In Re G (Minors) (Interim Care Order) [1993] 2 FLR 839, the judge had made an order joining foster-parents as parties to care proceedings. This court declined to interfere with his order, describing the case as being “exceptional … with many unusual features.” However, Waite LJ added this (page 846):

    “In ordinary circumstances I would not expect the court to regard it as appropriate to join foster-parents as parties to proceedings of this kind. To do so would in most cases run counter to the clear policy of the Act reflected in ss 9(3) and 10(3). The assistance afforded by foster-parents to the effective functioning of any system of child care is invaluable and should never be discouraged. Theirs is not a role, nevertheless, which would normally make it necessary for them to be joined formally as parties to proceedings in which the future upbringing of the children in their temporary care is in issue. There will generally be ample means for making their views known to the court, either directly as witnesses or indirectly through the inquiries of the guardian ad litem, without the necessity of adding them formally as parties.”

  3. Some fifteen years later, this court said much the same thing again. In Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959, a foster mother sought leave to apply for an adoption order in accordance with section 42(6) of the 2002 Act after the court, in that case the family proceedings court, had made a placement order. So the forensic context was very different from the one with which we are concerned. However, the judgment of Wilson LJ, as he then was, is of illuminating importance because he had to confront the argument of Mr Stephen Cobb QC, as he then was, appearing on behalf of the local authority. Wilson LJ summarised Mr Cobb’s argument as follows (para 35):

    “In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483.”

  4. Wilson LJ, with whom both Ward LJ and Moore-Bick LJ agreed, was having none of this. He said (para 24):

    “The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her.”

  5. He elaborated this (para 34):

    “I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child’s committal into care, the placement order is not the court’s last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by His Honour Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.”

    My own experience mirrors that of Wilson LJ.

  6. Referring to Re R (Care: Plan for Adoption: Best Interests) [2006] 1 FLR 483, Wilson LJ said (para 35):

    “I respectfully agree with Hedley J’s observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”

 

 

 

 

In short, foster carers or prospective adopters should not be involved in care proceedings as parties unless there are some exceptional circumstances.

So, in this case, were there any?

 

  1. In my judgment, there is no reason to depart from this long-established approach and, indeed, every reason to follow it. There is nothing in Article 8 or in the Strasbourg jurisprudence which calls for any different approach. There is nothing in the recent case-law on adoption (In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, M v Blackburn with Darwen Borough Council and others [2014] EWCA Civ 1479, [2015] 1 WLR 2441 and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273) which justifies, let alone requires, any change in approach. Nor, in particular, is there anything in the status or function of an early permanence placement foster carer which either justifies or requires any change in approach.
  2. I agree, therefore, with the essential thrust of the submissions by Mr Donnelly, Mr Tyler and Miss Anning as I have summarised them in paragraphs 28-29 above. The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian (who will be aware of Mr and Mrs X’s stance and can, if necessary, address their suitability) who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where, appropriate, criticism. So, I agree, Mr and Mrs X’s joinder to the care proceedings is inappropriate. Moreover, as was pointed out, and I agree, there is no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed.
  3. The truth is, as Mr Tyler submitted, that, putting on one side Mr and Mrs X’s role as early permanence placement foster carers, and, I emphasise, without in any way wishing to belittle or diminish all that they have done for T, this is a case where there has been an unexceptional period of time caring for an unexceptional child in an unexceptional case. This, in my judgment, is not an exceptional case justifying any departure from the general approach. For the reality is, as Mr Tyler correctly put it, that the ‘status quo’ and attachment on which Miss Scriven and Miss Fottrell placed such emphasis do not differ significantly from what is found in the many similar care cases where a child has been successfully fostered for a short period. Moreover, and to repeat, there is, in my judgment, nothing in the status or function of an early permanence placement foster carer which either justifies or requires any change in the hitherto conventional and long-established approach.
  4. To the extent I have indicated, I therefore agree with the thrust of Mr Tyler’s submissions.
  5. Moreover, there is, as Miss Anning pointed out, a very real risk that if, in a case such as this, the forensic process is allowed to become in effect a dispute between the prospective adopters and the birth family, the court will be diverted into an illegitimate inquiry as to which placement will be better for the child. That, it cannot be emphasised too much, is not the question before the court. I repeat, because the point is so important, what the Strasbourg court said in Y v United Kingdom:

    “family ties may only be severed in very exceptional circumstances … It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

    Indeed, there are passages in Judge Troy’s judgment – for example, where she refers to a “comparative analysis of these two options”, without at the same time spelling out that adoption is appropriate only as ‘a last resort’ and if ‘nothing else will do’ – which do make me wonder whether she may not in fact have fallen into precisely that error here.

  6. There is another significant matter which, in my judgment, points in the same direction. The effect of sections 44(2) and (3) of the 2002 Act is to impose a period of three months’ delay in a case such as this. This is an appropriate aspect of the statutory scheme in relation to private law adoptions. But it would sit most uncomfortably if, as suggested in the present case, the statutory scheme under the 2002 Act is to be run in tandem with the quite separate statutory scheme in relation to care proceedings under the 1999 Act, required, by the recently amended section 32(1)(a)(ii) of the 1989 Act, to be concluded within a total period of only 26 weeks.
  7. Before us, Miss Scriven and Miss Fottrell relied, as had Judge Troy, on the recent case-law emphasising that the court must address and analyse all the realistic options. We were taken through the cases (In re B, In re B-S, M v Blackburn and In re R), but with all respect to Judge Troy they are not in point and do not justify the course she took.
  8. What those cases are authority for is the proper approach in cases where (see In re B-S, para 33) the court is being asked by a local authority to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. It was in this context that, as we made clear in In re B-S, para 34, “The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.” M v Blackburn was a challenge to the making of a non-consensual placement order, and it was to that forensic contest that Ryder LJ was directing his observations (see, for example, para 32, where he said “A court making a placement order decision must conduct a five part exercise.”). The same observation applies to In re R. But the case before us is not such a case. The local authority is not seeking either an adoption order or a placement order, nor is it seeking approval of a care plan for adoption.
  9. It would turn the In re B-S learning on its head to assert that, in a case where the local authority is not seeking any order which brings In re B-S into play, the requirement to consider every realistic option justifies, let alone requires, the joinder of a party to argue for the adoption for which the local authority itself is not applying. In my judgment, the In re B-S learning applies where the local authority is inviting the court either to approve a care plan for adoption or to make a non-consensual placement order or adoption order. It does not apply where, as here, the local authority is seeking none of these things.
  10. Accordingly, in my judgment, Mr and Mrs X ought not to have been joined as parties to the care proceedings, and the father’s appeal must be allowed.
  11. I turn to the local authority’s challenge to the order giving Mr and Mrs X leave to apply for an adoption order.
  12. In my judgment, the application was premature, as was Judge Troy’s decision. There are two reasons for this. First, this was an application which properly fell to be considered after the conclusion of the care proceedings and once the court had concluded, if it did, that T’s welfare required his adoption. This is the approach which, in my judgment, is generally applicable, and nothing in the statutory early permanence placement scheme justifies any different approach.
  13. The other reason is graphically illustrated by the forensic difficulty in which Judge Troy found herself, as she described in three passages in her judgment which I have already quoted in context but which bear repetition:

    “Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular.”

    “The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents.”

    “The position taken by local authority … means … that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T.”

  14. None of this, in my judgment, is any matter for criticism of the local authority, let alone of Mr and Mrs X. It simply reflects the forensic reality given the stage the care proceedings had reached – as Judge Troy noted, the children’s guardian had not yet filed a report or even reached a concluded view –, a forensic reality which simply goes to demonstrate that the task which Judge Troy attempted to embark upon was premature. Moreover, her lack of knowledge, shared it may be noted by Mr and Mrs X, meant that, try as she might, Judge Troy did not have the materials which she needed to have if she was properly to determine their application in accordance with sections 42(4) and 44(4) of the 2002 Act.
  15. Accordingly, in my judgment, Mr and Mrs X ought not to have been given leave to apply for an adoption order, and the local authority’s appeal must be allowed.

 

There might come a case where the circumstances are sufficiently exceptional to allow a foster carer to make these applications, but it is rather hard to think of one.  I don’t think, tracking it through, that the Court of Appeal actually determined whether the foster carers had acquired any article 8 rights or whether as a result they had article 6 rights to a fair hearing, but the thrust of the case is that there were not the sort of exceptional circumstances that would have warranted granting their applications for leave to be joined as a party and to make their application for a private adoption.

 

As the Court of Appeal say at the end of the case :-

 

  1. Before parting from this case there is one final matter I need to refer to. These proceedings have inevitably imposed an enormous strain on Mr and Mrs X. Anxiety and anguish was etched on their faces as they sat before us. The outcome will come as a terrible blow. They have suggested that the local authority was unduly dismissive in November 2014 of the risk that they would not be able to adopt T and, after the paternal grandparents had emerged as contenders for T’s care, unduly dismissive of the possibility that the paternal grandparents would receive the positive assessment which, in the event, they did.
  2. We are in no position to evaluate those concerns which do not, in any event, ultimately bear upon the issues which we have to decide. Without, I emphasise, expressing any view as to what was actually going on, I merely note what I would hope is obvious: that in every case of an early permanence placement there must, from the outset and at every stage thereafter, be complete frankness coupled with a robust appraisal of the realities.

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